Many
industry legislative initiatives during Gov. George
W. Bush's term in office follow parallel themes:
limiting liability for polluters, reducing public
input on regulatory decisions, allowing 'voluntary'
instead of mandatory compliance with environmental
laws, and, allowing polluters to design their
own anti-pollution programs.

This
week PEER focuses on House
Bill 2776, passed by the Legislature and signed
into law by Governor Bush in the 75th (1997) Texas
Legislative session. The bill overhauled Texas'
state Superfund program, which oversees cleanup
of hazardous waste on industrial sites that may
pose a health or safety threat, but which do not
qualify for the federal Superfund program. Polluters
Write Texas Environmental Policies

The bill was the culmination of a process initiated
by some of Governor Bush's closest allies and
political supporters. Soon after Bush appointed
Barry McBee, Chairman of the Texas Natural Resources
Conservation Commission in 1995, the agency established
a "workgroup" to reevaluate the state's hazardous
waste cleanup programs. (1)

Much like the secret industry workgroup that developed
Governor Bush's policy on grandfathered
polluters. This body was dominated by the
state's most significant polluters, with virtually
no outside input.

At a Senate Natural Resources committee meeting
in May 1997, Bush-ally State Senator Buster Brown
attributed the bill's proposals entirely to this
workgroup. Brown told Senators that it included
"interested parties involved in all aspects of
the program, including industry and environmental
representatives."(2) Rep. Mike Jackson made a nearly identical statement to
the House Environmental Regulation Committee.(3)

Public
Shutout of Superfund Reform

PEER
has learned that no environmentalists or other
public members participated in the workgroup developing
this bill -- only representatives of polluting
industries.

Only three environmentalists were even listed
among the 38 members of the workgroup. When PEER
contacted the two Sierra Club representatives
listed as workgroup members -- State Sierra Club
Director Ken Kramer told us they did not participate
after attending one or two meetings. Kramer said
there'd been "no input from our group and certainly
no sign off on the final outcome."(4)

The rest of the members who wrote the legislation
consisted of a who's who list of polluters - 35
representatives from business associations or
large companies. They included: lobbyists for
the Texas Chemical Council, the Texas Association
of Business and Chambers of Commerce, the National
Federation of Independent Business, and the Independent
Bankers Association of Texas, representatives
of agribusiness, the insurance lobby, and an array
of polluting companies like Dow Chemical, Temple-Inland,
Dupont and Union Carbide. A handful of employees
of various state agencies (7) were also listed
as workgroup members.

In other words, far from representing input from
"industry and environmental" representatives,
as Senator Brown and Rep. Jackson would have their
colleagues believe, the authors of HB 2776's policies
came nearly universally from polluting industries.

State
Superfund bill weakens environmental protection

It's not surprising then that the policies implemented
in HB 2776 enormously favored polluters and property
owners who would otherwise be liable for pollution.
The highlights include:

Limited
liability for lenders and fiduciaries for hazardous
waste cleanup and the impact of pollution on
the public.

Extended
immunity from liability for off-site contamination,
i.e., for contamination of other people's
property, under certain conditions.

Allows
the TNRCC Chairman to remove facilities from
the state Superfund list even if a landowner
has not requested it.

Changed
requirements for de-listing state Superfund
facilities: Previously sites could only be taken
of the Superfund list after a public contested
case hearing; HB 2776 changed that requirement
to mandate only a "public meeting" before sites
were taken off the list.

Ended
TNRCC's practice of filing state liens on state
Superfund sites. Under the new policy TNRCC
merely sends the landowner a bill.

Allowed
new options to resolve polluter liability, including
"covenants not to sue," mixed (i.e., partially
public) funding for cleanup projects, and "partial
settlements" where the polluter pays less than
the full cost of the cleanup.

Created
a new class of state-defined "Innocent Property
Owners," and authorized TNRCC to issue "certificates
of innocence" which absolve the property owner
for liability for hazardous waste on their properties.

How
Texas industry runs Texas

Texas superfund laws were designed to hold accountable
individuals and businesses whose toxic pollution
threatens public health. HB 2776 is yet another
example of how under Governor George W. Bush,
Texas industry has reduced legal liability for
its actions, weakened public participation, and
reduced penalties and enforcement by state agencies
charged with protecting public health and the
environment.

In
Part 11, PEER will examine how this
bill turned into a "Christmas tree" for special
interests- one where all the polluters got nice
presents, and examine the legal impacts of HB
2776.

Sources:

Recommendations
of the Fund 550 Workgroup, August 1996, p. 1.
It mentions here that the executive director
of the TNRCC instigated the workgroup.

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